Legal Issues Before During and After Or “First, let’s kill all the lawyers . . .”

Legal Issues Before During and AfterOr “First, let’s kill all the lawyers . . .” Terrorism Legal Symposium Legal Officers Section Mark H. Newbold, Deputy City Attorney-Police Charlotte-Mecklenburg Police Department

Local Government’s Role “Local Response is the key to stopping this demon in its tracks” Bioterrorism and the Role of Local Government By Jill Moore, Institute of Government

Goals of Local Government • To detect when an act of bioterrorism occurs • To respond effectively to contain the threat and protect the public. • To help the community recover when the emergency has passed Bioterrorism and the Role of Local Government By Jill Moore, Institute of Government

Need for Legal Analysis • Constitutional Issues embedded within the Goals of Local Government. • “To detect when an act of bioterrorism has occurred” • 1st (surveillance, restriction of movement, freedom of speech) • 4th (search and seizure, special needs doctrine) • 5th (just compensation) • 14th (seizing property with due process)

Need for Legal Analysis • “To respond effectively to contain the threat and protect the public.” • 5th Amendment: Just compensation clause • Police Powers • 4th Amendment • 14th • Equal protection • Due Process • 1st Amendment • Free trade of ideas • Restricting speech/association

Need for Legal Analysis • “To help the community recover when the emergency has passed.” • Just compensation for governmental takings • 4th and 14th • Quarantine and isolation • Equal Protection • Settlement of claims in a fundamentally fair manner • Profiling Issue

Need for Legal Analysis • To ensure that the rule of law is followed and preserved.

Before • Are mutual aid / interagency agreements in place and current? • Has authority for the governmental entity to enter into the mutual aid agreement been followed? • Do you have a regional mutual aid agreement? If not, why not? • Have you enlisted help from the private sector by virtue of informal MOU’s

Before – Mutual Aid • Types of agency cooperation. • Municipality with other Municipalities • Municipality with County • Municipality with Sheriff • Dual Office • Municipality with Federal Agencies • Dual office with U.S. Marshal’s office • Officer acting as a private citizen.

Before - State of Emergency • Declaring a State of Emergency • Review and understand how and who can declare a state of emergency. • Understand the relationship between Federal, State and Local procedures • If local what is the threshold necessary to establish a state of emergency • Have you prepared a Legal Operational Manuel with draft proclamations and trained command staff on how to obtain a declaration of emergency.

State of Emergency • Review and understand • Authority of the Governor to declare a state of emergency • Understand the threshold of when the power to declare a state of emergency exists. • Threshold? • For example under North Carolina law the “Governor may exercise all powers conferred by this section if he further finds that local control of the emergency is insufficient to assure adequate protection for lives and property ” • What is the relationship of the local plan to the National Response Plan.

Local Declaration State of Emergency - example • A state of emergency shall be deemed to exist whenever, during times of great public crisis, disaster, rioting, catastrophe, or similar public emergency, for any reason, municipal public safety authorities are unable to maintain public order or afford adequate protection for lives, safety or property. • In the event of an existing or threatened state of emergency endangering the lives, safety, health, and welfare of the people within the city, or threatening damage to or destruction of property, the mayor of the city is hereby authorized and empowered to issue a public proclamation declaring a state of emergency, and to place into effect any or all restrictions authorized, including the authority to define and impose a curfew.

State of Emergency • What are the specific grants of power to law enforcement during a state of emergency. • Curfews • Detentions/searches • Constitutionally permissible? • Special Needs doctrine • Restricting access to a scene. • Forced evacuation. • Forced vaccinations for employees and public. • Enforcement of suspension of sales of certain items/liquor/firearms. • Restriction of movement of people in public places. • Restriction of operation of certain business. • Restriction of sale of certain items. • e.g. Any substances which by itself or in any combination could be used to make an explosive device or weapon of mass destruction. • Transportation, sale, possession of alcoholic beverages?

Before – Emergency Proclamation • Prohibit Excessive Pricing during state of emergency? • If a major metropolitan area in a large county. • Ordinance/Resolution automatically adopting state of emergency declared by major metropolitan area. • Suspension of bidding requirements for purchasing and the granting the ability to award of contracts. • The ability to pass emergency ordinances? • Penalty provisions? • Specific grants of powers should be reviewed under the 1st, 4th, 5th and 14th.

Joint Implementation Plans • Involuntary Isolation and Quarantine • Authority to declare need • Threshold requirement • Enforcement • Due Process • Preparation for class challenge • Additional counsel to assist with appeals • Assistance from local bar

Quarantines • Identify the legal requirements surrounding Quarantines and Isolation. For example. • Quarantine • The limiting of “freedom of movement or action of persons of animals which have been exposed to or are reasonably suspected of having been exposed to a communicable disease or communicable condition for a period of time as may be necessary to prevent the spread of disease.” • This definition incorporates a reasonable suspicion standard to those exposed to a communicable condition. • Isolation. • The limiting the freedom of movement of action of a person or animal with a communicable disease for a period of communicability to prevent the direct or indirect conveyance of the infectious agent from the person who are susceptible or who may spread the agent to others. • Person must be diagnosed with the condition before restriction is in place.

Quarantines • Are there any additional legal requirements that must be met before quarantine is declared? • “The State Health Director and a local health director are empowered to exercise quarantine and isolation authority. Quarantine and isolation authority shall be exercised only when and so long as the public health is endangered, all other reasonable means for correcting the problem have been exhausted and no less restrictive alternative exits” • Reasonable suspicion + all other means for correcting the problem have been exhausted + no less restrictive alternative exists”

Quarantine • Can the quarantine be appealed? Process to handle widespread appeals? • “When quarantine or isolation limits the freedom of movement of a person . . . the period of limited freedom of movement or access shall not exceed 10 calendar days. Any person substantially affected by that limitation may institute in superior court in ---- County or in the County in which the limitation is imposed an action to review that limitation. If the person requests a hearing, a hearing shall be held within 72 hours of the filing of that request excluding Saturdays and Sundays. The court shall reduce the limitation if it determines, by a preponderance of the evidence, that the limitation is not reasonably necessary to prevent or limit the conveyance of a communicable disease.”

Quarantine • If there is a significant incident in the County Attorney’s office, is the local court equipped to handle numerous appeals. • Can additional counsel be brought in to assist with appeals? Local Bar? • Statutory Authority allowing appointment of special attorney?

Joint Implementation Plans • Isolation and Quarantine • Location and structure necessary to secure persons • Authority to seize property in the event voluntary compliance is not obtained. • Enforcement of the quarantine/isolation • Keeping people out • Keeping people in • Use of force protocol • Graham (force to effect a seizure) • Sacramento (force to disperse )

Before • Quarantine/Isolation • Education of public prior to an event • Voluntary compliance crucial • Implementation plan in place in advance

During • Have you secured a chair for Legal in the command center? • Direct line of communication between legal and command center • Sufficient Legal Staff to accommodate extended event • Assignment L.O. to same shift • Assistance from local bar if necessary

During • Commandeering Resources • Police Powers usually initiated when state of emergency is proclaimed. • Limitation • Cannot be arbitrary and capricious. • Quarantine/Isolation • Restriction of movement • Curfew/limited restriction to areas • Multi-jurisdiction response

After • Preservation of “The Record” • Facts/Evidence that were used to support the decision to: • Declare a state of emergency • Quarantine/Isolation • Requisition / Commandeer Property • Seize or destroy property • Declare curfew

After • Potential Legal Challenges • 4th: Seizure (detention/arrest) • SOS • 5th: Just Compensation • If commandeering/requisition • If not really an emergency; may not within police powers. • 1st: Deprived or chilled “free exchange of ideas”; “association” right to “petition grievances”. • Illegal curfew • Insufficient threshold

After • Potential Legal Challenges • 14th • If “state of emergency” did not exist • Substantive due process • Arbitrary / shocks the conscience • Failure to act. Created special relationship or created the danger

After • Procedural Due Process • Deprivation of liberty or property • Equal Protection • Profiling issue • Settlement of claims

After • Potential Legal Challenges • Internal personnel issues • Worker’s compensation claims • Vaccination issue • AWOL • Termination/ civil service • Injured volunteers

Conclusion • Contingency Planning • Secure a place-link in the command center • Legal Operation Manual • Legal Staffing 24 hour basis

Legal Issues Before During and After Or “First, let’s kill all the lawyers . . .”